Court of Appeal: No evidence that counsel for receiver misled the court

A man who sought to set aside the judgment and order of the Court of Appeal, alleging that Senior Counsel for the receiver misled the Court in relation to the admission of new evidence granted in an earlier hearing, has had his application refused by the Court of Appeal.

Stating that it was regrettable that Counsel had made an incorrect statement to the Court, Ms Justice Mary Irvine said that there was no evidence of any intentional deceit or fraud, nor was there anything said to adversely affected the outcome of the appeal.

Background

The appeal brought by Mr Wright was against an order made in the High Court on an application for an interlocutory injunction.

In February 2017, Ms Justice Caroline Costello ordered Mr David Wright to deliver up possession of a number of properties to an appointed receiver, Mr Ken Tyrrell.

The High Court judge granted a stay on her order insofar as it related to one property until June 2017, and that order was extended by the Court of Appeal until December 2017.

In January 2018, an application to extend that stay was heard by Mr Justice Seán Ryan, President of the Court of Appeal.

In that hearing, Mr Wright also sought liberty to introduce new evidence on the hearing of the appeal concerning what he then described as “conflicting security documents” which he stated had not been before Ms Justice Costello when she made her order.

Junior counsel on behalf of the receiver did not object to the copy mortgage document being admitted on the hearing of the appeal. President Ryan granted Mr Wright liberty to introduce new evidence limited to the security documentation supporting his loan – however no formal court order was drawn to reflect President Ryan’s directions.

Before the Court of Appeal in February 2018, Mr Wright advised the court that President Ryan had granted him permission to pursue “other grounds” and that he was entitled to introduce new evidence. In response, senior counsel for the receiver responded by stating that there was ‘no order to that effect and that was not what the President said’.

However, the new evidence was in Mr Wright’s affidavit, and the Court acknowledged that it had the affidavit and that the receiver was making no objection to that affidavit forming part of the evidence.

In September 2018, Ms Justice Máire Whelan delivered the judgment of the court of Appeal in which Mr Wright’s appeal was dismissed. Ms Justice Whelan concluded, inter alia, that any discrepancies in that documentation was not sufficient to deny the receiver the injunction which he sought.

Misled on issue of fundamental importance

In the present application before the Court of Appeal, Mr David Wright, sought to set aside the judgment of Ms Justice Whelan and the court’s order consequent thereon.

Mr Wright provided three reasons:

The receiver withheld from the High Court judge the actual mortgage filed in the Land Registry which was undated and had failed to explain the inconsistencies in the copies of the security documentation furnished to the court.

The sum claimed for interest in other proceedings brought by way of summary summons was incorrect and the statements of account relied upon by the bank were inconsistent in this respect.

The Court of Appeal had been misled on an issue of fundamental importance by senior counsel acting on behalf of the receiver when it had been informed that Mr Wright had not been granted liberty to introduce new evidence by President Ryan.

High threshold

Considering Re Greendale Developments Ltd (No3) [2000] 2 I.R. 514, Tassan Din v. Banco Ambrosiano S.P.A [1991] I.R. 569 and Kenny v. The Provost, Fellows and Scholars of the University of Dublin, Trinity College [2008] 4 JIC 1001; Ms Justice Irvine said that the circumstances in which a court will set aside a final order were rare, and that these judgments made clear ‘that the party who seeks to set aside a final order must discharge the burden of establishing that there are exceptional circumstances showing that the remedy is necessitated by the interests of constitutional justice’, and ‘the mere assertion of a breach of constitutional rights does not provide a sufficient basis for seeking to set aside a final order’.

While fraud can provide a basis for setting aside a final order, Ms Justice Irvine said that the onus of proof was an exceptionally high one (as per Tassan Din).

Ms Justice Irvine said that ‘nothing less than proof of fraud in the strict legal sense of that word will suffice to set aside a final order’, and that an applicant ‘must establish conscious and deliberate dishonesty on the balance of probability’. Furthermore, ‘the fraud alleged must be such as to affect the impugned decision in a fundamental way. It will not suffice to allege that the new situation revealed by the uncovering of the fraud might have affected the judgment’.

Mr Wright produced no concrete evidence to support his contention that the receiver fraudulently withheld the copy security documentation from the High Court judge. Furthermore, there was nothing to show how the availability of such documentation at the time of the injunction would have altered the result of the High Court application.

Mr Wright’s reliance on an incorrect calculation of interest claimed was ‘wholly extraneous to the within proceedings’.

The submission that the court’s judgment should be set aside because of what was said by senior counsel to the court concerning the admission of new evidence on the appeal, should be rejected ‘both as a matter of fact and as a matter of law’.

Ms Justice Irvine said that it was ‘indeed regrettable that senior counsel acting on behalf of the receiver made a statement to the court which was incorrect’, however, it was clear from the Court’s transcript that the Court ‘well understood that Mr Wright was seeking to rely upon the discrepancies between each of the three copy documents referred to in his affidavit’ and that ‘the receiver was making no objection to the introduction of that evidence’.

Ms Justice Irvine was satisfied that there was nothing in the evidence which could cause her ‘to conclude that the receiver, or his counsel, sought to deliberately deceive or mislead the court’ concerning President Ryan’s directions. Further, it was clear that the Court did not exclude from its consideration the new evidence introduced by Mr Wright.

Refusing the application, Ms Justice Irvine was satisfied that there was no evidence of any intentional deceit or fraud on the part of the receiver or senior counsel acting on this behalf, nor was there anything that was said on behalf of the receiver to adversely affected the outcome of the appeal.